Citation Nr: 9903501
Decision Date: 02/08/99 Archive Date: 02/17/99
DOCKET NO. 97-01 139 ) DATE
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On appeal from the
Department of Veterans Affairs Regional Office in Jackson,
Mississippi
THE ISSUE
Entitlement to service connection for a vision disorder.
REPRESENTATION
Appellant represented by: The American Legion
WITNESS AT HEARING ON APPEAL
Appellant
ATTORNEY FOR THE BOARD
J. M. Ivey, Associate Counsel
INTRODUCTION
The veteran served on active duty from May 1976 to September
1982. This matter comes to the Board of Veterans' Appeals
(Board) from a rating decision, dated November 1996, by the
Department of Veteran's Affairs (VA) Regional Office (RO) in
Jackson, Mississippi.
REMAND
The Board finds that the medical evidence of record needs to
be supplemented. Accordingly, the case is hereby REMANDED to
the RO for the following action:
1. The RO is to schedule the appellant
for an eye examination. The examiner
should be provided with the appellant's
claims folder and should review the
appellant's medical history. It is
requested that the examiner indicate
whether the eye condition is an error of
refraction, a congenital defect or a
developmental defect or an aquired
disorder due to disease or injury. The
opinion must be specifically noted in the
report.
2. If it is the determination of the RO
that the impairment is a congenital or
developmental defect or an error of
refraction, the opinion must be supported
by competent evidence. If it is the
opinion of the RO that the condition is
acquired but preexisted service, the RO
is under an obligation to address the
presumption of soundness and the
presumption of aggravation.
3. The General Counsel, in representing
VA before the Court, has noted that the
RO has duties. Pursuant to 38 C.F.R. §
3.655 (1997), when the claimant without
good cause fails to report for
examination, his reopened claim will be
denied. However, the Secretary must show
a lack of good cause for failing to
report. Further, the VA has a duty to
fully inform the veteran of the
consequences of the failure to undergo
the scheduled examination. Reference was
made the M21-1, Part IV, paragraph
28.09(b) (3). The RO must comply with
all notification requirements regarding
the duty to report and the failure to
report for examination.
Thereafter, in accordance with the current appellate
procedures, the case should be returned to the Board for
completion of appellate review. The Board intimates no
opinion as to the ultimate outcome of this case. The veteran
and the representative are informed that they may submit
additional evidence or argument while the case is in remand
status. Quarles v. Derwinski, 3 Vet. App. 129, 141 (1992).
This claim must be afforded expeditious treatment by the RO.
The law requires that all claims that are remanded by the
Board of Veterans' Appeals or by the United States Court of
Veterans Appeals for additional development or other
appropriate action must be handled in an expeditious manner.
See The Veterans' Benefits Improvements Act of 1994, Pub. L.
No. 103-446, § 302, 108 Stat. 4645, 4658 (1994), 38 U.S.C.A.
§ 5101 (West Supp. 1998) (Historical and Statutory Notes).
In addition, VBA's ADJUDICATION PROCEDURE MANUAL, M21-1, Part
IV, directs the ROs to provide expeditious handling of all
cases that have been remanded by the Board and the Court.
See M21-1, Part IV, paras. 8.44-8.45 and 38.02-38.03.
H. N. SCHWARTZ
Member, Board of Veterans' Appeals
Under 38 U.S.C.A. § 7252 (West 1991), only a decision of the
Board of Veterans' Appeals is appealable to the United States
Court of Veterans Appeals. This remand is in the nature of a
preliminary order and does not constitute a decision of the
Board on the merits of your appeal. 38 C.F.R. § 20.1100(b)
(1998).